Ghostbusting in the Blogosphere: Is Ghostblogging Unethical & What’s the Best Way to Deal With It?

Back in 2004, now my departed-from-the-blogosphere friend David Giacalone predicted that Ghostblogging Will Kill the Blogosphere. In a thoughtful post that considered the issue from all sides, David criticized the ethics of ghost blogging and lamented that that mass produced, ghostblogs would be “devoid of the spark of life that has put magic into this way of communicating and created a community.”

Six years later, the blogosphere thrives (though still not the same without David’s wisdom), and ghost blogging remains a perennial topic of conversation. David revisited the ghost blogging issue in 2006 as did several other bloggers in 2007. And this past month, Mark Bennett raised the issue anew at Social Media Tyro, followed by Scott Greenfield at Simple Justice. Both Mark and Scott condemn ghost blogging and link to a Jenni Buchanan’s Legal Ghostblogging site which listed the lawyers who’d used her services. And now, Scott’s and Mark’s decision to call out the lawyers who use ghost bloggers itself has been questioned by DC criminal lawyer Jamison Koehler as well as in more comments at Social Media Tyro.

So what to make of all of this? Here are my thoughts.

First off, on the issue of e-shaming or call outs foremost, that’s the First Amendment at work. (though I agree with much of Jamie’s post, I wouldn’t characterize Mark’s or Scott’s critiques as cyberbullying). Sometimes the First Amendment means that you (or me for that matter) get a little roughed up. That’s the nature of discourse.

Having said that, I don’t criticize Mark or Scott for outing the ghostblogging lawyers, since Buchanan’s clients willingly provided testimonials and in doing so, put themselves out there. Nor do I take issue with Brian Tannebaum’s decision to disclose lawyer marketers with tainted ethics records (in fact I interviewed him about it here) because frankly, that information is public record (even Avvo lists ethics violations).

Nevertheless, I’m far less comfortable with criticisms like this one about the lawyers embroiled in the Total Attorneys ethics mess or “naming names” of lawyers who advertise on what Eric Turkewitz has termed dreck blogs. As I commented on both blogs, the lawyers who subscribed to services offered by Findlaw and Total Attorneys, both of which are ABA sponsors, most likely believed that the ABA had vetted these companies’ practices before accepting their sponsorship dollars. Though an ABA or bar stamp of approval doesn’t give lawyers a pass, at a time where bars are providing little guidance and ethics related to social media are in a state of flux, I think that the more appropriate response in this category of cases is a behind the scenes education or a generally educational post rather than a public tarring. (moreover, the ABA and bar associations deserve criticism – and I’ve got a post coming on this as I promised in these comments).

And ultimately, that’s my biggest problem with some of the e-shaming posts: they focus on the conduct of a group of lawyers and in doing so, waste an opportunity to educate a wider spectrum. Let’s take the issue of ghost blogging. For all of the controversy and hype generated by the recent posts on ghost blogging, the general consensus by a broad cross section of bloggers in 2004, 2006, 2007 and now is that ghost blogging is wrong for the following reasons:

1. Ghost blogging by lawyers is deceptive and therefore unethical

(Actually, the ethics Q is the toughest, so it gets a bit of discussion. In my view, ghost blogging is different from speech writing or “ad copy” since politicians don’t owe the public the same ethical duty that we lawyers owe to clients. And it’s different from outsourcing a brief where the supervising lawyer generally has some input and often lists a contract lawyer or associate. Also, bear in mind that some courts prohibit undisclosed ghostwriting of court pleadings for pro se litigants, finding that concealing the participation of a lawyer behind the scenes gives pro se’s an unfair advantage. Finally, writing web copy, bios and such (discussed in these comments) is also different from my perspective. Though I think lawyers should do it themselves, that kind of writing is descriptive rather than opinion oriented, so I have less of problem with it.

To me, true blogging is personal so I apply the telephone test. I might have my assistant take a call for me, but I’d never ask her to pretend to be me on the phone. And if I did, that would be unethical.) Same with Facebook, Twitter and other media where the public expects that it’s ME communicating.

2. Ghost blogging is inauthentic and ruins an opportunity for meaningful discourse

3. Ghost blogging is ineffective, because without a genuine voice behind blogs, they’re not particularly compelling

4. Ghost blogging is potentially a threat to the public since ghostbloggers are not lawyers and may provide mis-information to prospective clients.

5. In an internet age, ghostblogging, and specifically use of canned content can embarrass you, since clients searching for lawyers online may come across many blogs with the same posts (as is the case with this ghostwritten blog)

So what about lawyers who are dead set on blogging, either because (1) in theory, they like the idea of educating clients but don’t have the skills or time to do it, or because (2) some marketer told them to do it. Here’s my advice:

1. Realize that there are plenty of ways to get the word out about your practice. You’ve got to choose the ones that make the most sense for you. Some lawyers love to go to bar events and participate on committees, some lawyers love to write, so they blog. If you don’t like to write, then don’t blog. There’s no shame in that.

2. If you like the idea of providing educational resources to clients, you can still do so through a blog. Just do it honestly. As I’ve suggested before, you can hire a law student to research and write blog posts under your supervision (as commenters to the post pointed out, supervision is very important since new attorneys may leave out information) and then give them a byline. In fact, in a down economy, paying new grads to write posts for you can help them earn a little cash as they look for work.

Or, if you’re dead set on buying canned content, include a prominent disclaimer. I suggest something like this:

The Model Code of Professional Responsibility encourages lawyers to educate the public about the law. At the same time, I owe a duty to zealously represent my clients, which leaves me little time to provide public education. Still, because I believe in the importance of providing these resources, I have purchased and reviewed [educational articles/materials/blogpost] from X company which offer a good overview of the [bankruptcy, estates, wills – you fill in the blank] and that will inform you about the basic issues. Bear in mind that these materials are not written by lawyers, but are simply intended to explain basic concepts in a general manner. If you have any further questions about your matter, please feel free to contact me. THIS IS ATTORNEY ADVERTISING.*

In this way, you’re providing a valuable service and further, showing clients that education is important enough that you’re willing to pay to provide it.

UPDATE – Two more ideas for busy lawyers who want to blog. First, group blogs. If you don’t have time to write more than one or two posts a month, you could band together with a few other lawyer/bloggers whom you trust. You’d each have a byline for your own post, but your clients would get the benefit fo a steady stream of content, plus any discourse between the participating bloggers. Second, dictation. Dictate posts on a drive to court and have an assistant transcribe them. Again, perhaps this won’t produce the most substantive post, but at least it’s your work.

*An advertising disclaimer is appropriate because there’s a specific call to action associated with the disclaimer that I proposed. For blogs that provide pure educational content without a specific call to action, it’s my opinion that an advertising disclaimer isn’t necessary (in my view, general contact information or a link to your blog on your about page, is not, a “call to action” that would convert an otherwise educational blog into advertising). Of course, check your bar’s rules on this one!!!

I think a blog is doomed to fail if the author doesn’t have a passion for writing. You hit the mark with this: If you don’t like to write, then don’t blog.
A failed dreck-blog leaves ugly stuff for future clients to find when they Google you.

Eric T.

I think a blog is doomed to fail if the author doesn’t have a passion for writing. You hit the mark with this: If you don’t like to write, then don’t blog.
A failed dreck-blog leaves ugly stuff for future clients to find when they Google you.

http://www.koehlerlaw.net/blog/ Jamison Koehler

Thank you for a balanced and thought-provoking piece. And, as always, you go beyond the complaining (mine included) to propose something positive and constructive.

http://www.koehlerlaw.net/blog/ Jamison Koehler

Thank you for a balanced and thought-provoking piece. And, as always, you go beyond the complaining (mine included) to propose something positive and constructive.

http://67.225.230.212/~sh1ngl3 Carolyn Elefant

Jamie – I did not think that you were complaining. You were right to jump in and raise an issue that has been troubling to many people. Now, you have spawned another round of debate, which is important. And the more views, the better, in my opinion.

http://67.225.230.212/~sh1ngl3 Carolyn Elefant

Jamie – I did not think that you were complaining. You were right to jump in and raise an issue that has been troubling to many people. Now, you have spawned another round of debate, which is important. And the more views, the better, in my opinion.

http://blogs.law.harvard.edu/ethicalesq David Giacalone

As always, thank you for your kind words about my retired blawg. And, thanks for taking up this topic again. My primary concerns about the notion — first floated by Kevin O’Keefe at LexBLog — that you can use ghostwritten blawg materials to gain recognition as a leading legal authority, are set out in detail in the post “Selling the Perception of Expertise” athttp://tinyurl.com/ErsatzExpertise

http://blogs.law.harvard.edu/ethicalesq David Giacalone

As always, thank you for your kind words about my retired blawg. And, thanks for taking up this topic again. My primary concerns about the notion — first floated by Kevin O’Keefe at LexBLog — that you can use ghostwritten blawg materials to gain recognition as a leading legal authority, are set out in detail in the post “Selling the Perception of Expertise” athttp://tinyurl.com/ErsatzExpertise

http://www.gaworkerscomplaw.com Michael Moebes, Esq.

I agree with Eric T., and when I’m frequently asked about whether blogging is a practice a lawyer should take up, I tell them I wouldn’t bother unless they enjoy writing/blogging anyway. Otherwise, the content and voice will suck…assuming they even keep it up past a few weeks anyway.

http://www.gaworkerscomplaw.com Michael Moebes, Esq.

I agree with Eric T., and when I’m frequently asked about whether blogging is a practice a lawyer should take up, I tell them I wouldn’t bother unless they enjoy writing/blogging anyway. Otherwise, the content and voice will suck…assuming they even keep it up past a few weeks anyway.

Carolyn, you know that I agree with almost everything you say (not just in this post, but in general). However, I disagree with your suggestion that, if you hire someone to “ghostblog” for you, under your supervision, you must give the writer a byline. As I read your post, you’re implying that it’s unethical to omit a byline under these circumstances.
As Jenni Buchanan noted on Blog for Profit, “[a]s a business owner, you are responsible for anything and everything that is published under the name of your business; this includes documents, letters, website and blog content, articles, reviews — everything — whether it is written by you, your most trusted research assistant, a ghost writer, or a guest writer.” Every lawyer — as a lawyer, not merely a businessperson — has an ethical responsibility to supervise the employees and independent contractors (including lawyers and nonlawyers) who perform work on his or her behalf.
It’s perfectly ethical for a lawyer to submit to a court, under the lawyer’s own signature, a document (pleading, brief, etc.) written by someone else. By signing a court document drafted by someone else, the lawyer takes full responsibility for the contents of the document, just as, by attaching his or her name to a blog post, the lawyer takes full responsibility for the content of the post.
I also reject the argument that you can’t be an expert on an area of law if you hire someone else to write about it (or perhaps even to research the issues *and* write about them). The lawyers who hire me to research particular issues and draft briefs that will ultimately be filed under their signatures are experts in their areas of practice. Do they know the answer to every legal question that arises? Of course not. Does that make them any less expert in their fields? Of course not. A lawyer may learn about his or her practice area by reading articles/posts written by others – even articles/posts they’ve paid someone to write.
Let’s come at this from another direction: what of the new lawyer who researches and writes all of his or her own blog posts, and is blogging to demonstrate expertise in a chosen practice area? Is *that* lawyer an expert? Most likely not: few new lawyers are experts in their fields. But such a lawyer would get a pass from the ghostblogging critics (assuming, of course, that the lawyer doesn’t make any explicit misrepresentations about his or her expertise).

http://legalresearchandwritingpro.com Lisa Solomon

Carolyn, you know that I agree with almost everything you say (not just in this post, but in general). However, I disagree with your suggestion that, if you hire someone to “ghostblog” for you, under your supervision, you must give the writer a byline. As I read your post, you’re implying that it’s unethical to omit a byline under these circumstances.
As Jenni Buchanan noted on Blog for Profit, “[a]s a business owner, you are responsible for anything and everything that is published under the name of your business; this includes documents, letters, website and blog content, articles, reviews — everything — whether it is written by you, your most trusted research assistant, a ghost writer, or a guest writer.” Every lawyer — as a lawyer, not merely a businessperson — has an ethical responsibility to supervise the employees and independent contractors (including lawyers and nonlawyers) who perform work on his or her behalf.
It’s perfectly ethical for a lawyer to submit to a court, under the lawyer’s own signature, a document (pleading, brief, etc.) written by someone else. By signing a court document drafted by someone else, the lawyer takes full responsibility for the contents of the document, just as, by attaching his or her name to a blog post, the lawyer takes full responsibility for the content of the post.
I also reject the argument that you can’t be an expert on an area of law if you hire someone else to write about it (or perhaps even to research the issues *and* write about them). The lawyers who hire me to research particular issues and draft briefs that will ultimately be filed under their signatures are experts in their areas of practice. Do they know the answer to every legal question that arises? Of course not. Does that make them any less expert in their fields? Of course not. A lawyer may learn about his or her practice area by reading articles/posts written by others – even articles/posts they’ve paid someone to write.
Let’s come at this from another direction: what of the new lawyer who researches and writes all of his or her own blog posts, and is blogging to demonstrate expertise in a chosen practice area? Is *that* lawyer an expert? Most likely not: few new lawyers are experts in their fields. But such a lawyer would get a pass from the ghostblogging critics (assuming, of course, that the lawyer doesn’t make any explicit misrepresentations about his or her expertise).

http://67.225.230.212/~sh1ngl3 Carolyn Elefant

Lisa,
As you know, I wholeheartedly support the use of contract attorneys. But in most cases, when lawyers work with contract attorneys, they oversee and provide direction for the research. I know that specifically, that when someone like you works with contract attorneys, you try to actively engage them with questions and suggestions about different approaches to take. In that situation, the lawyer has played a part in the final product, if not the actual execution so I see nothing unethical or improper about the lawyer putting his name on the brief.
I didn’t mean to suggest that lawyers who use ghost bloggers should not have a blog at all. I just think they should disclose when others have written the post so it is not deceptive. They don’t even have to say specifically, who wrote it – even a general disclaimer like “some of these posts are written by professional writers” would just make it more straight forward. A commenter sent a link to a copy of a “canned newsletter” that law firms can send it. But the newsletter has a disclaimer. Why can ‘t blogs have that too?
For me, the issue isn’t one of expertise so I would have to give more thought to those points that you raised. Rather, I feel that blogging is a Web 2.0 media – a personal interaction like email or Facebook and it’s because of that (not any implied expertise) that I believe transparency is important.

http://67.225.230.212/~sh1ngl3 Carolyn Elefant

Lisa,
As you know, I wholeheartedly support the use of contract attorneys. But in most cases, when lawyers work with contract attorneys, they oversee and provide direction for the research. I know that specifically, that when someone like you works with contract attorneys, you try to actively engage them with questions and suggestions about different approaches to take. In that situation, the lawyer has played a part in the final product, if not the actual execution so I see nothing unethical or improper about the lawyer putting his name on the brief.
I didn’t mean to suggest that lawyers who use ghost bloggers should not have a blog at all. I just think they should disclose when others have written the post so it is not deceptive. They don’t even have to say specifically, who wrote it – even a general disclaimer like “some of these posts are written by professional writers” would just make it more straight forward. A commenter sent a link to a copy of a “canned newsletter” that law firms can send it. But the newsletter has a disclaimer. Why can ‘t blogs have that too?
For me, the issue isn’t one of expertise so I would have to give more thought to those points that you raised. Rather, I feel that blogging is a Web 2.0 media – a personal interaction like email or Facebook and it’s because of that (not any implied expertise) that I believe transparency is important.

http://legalresearchandwritingpro.com Lisa Solomon

An ethical lawyer who uses a ghostblogger will similarly “oversee and provide direction for the research” and writing performed by the ghostblogger.
The logical conclusion of your position is that, unless a lawyer bases an educational marketing activity (which would include such things as seminars for the public and CLEs for colleagues) entirely on work that the lawyer personally performed from scratch, the lawyer is being deceptive, and therefore unethical. That’s a pretty extreme position.
I agree with you that, from a marketing and personal branding perspective, transparency is important. I was addressing the ethics — not the wisdom — of using a ghostwriter.

http://legalresearchandwritingpro.com Lisa Solomon

An ethical lawyer who uses a ghostblogger will similarly “oversee and provide direction for the research” and writing performed by the ghostblogger.
The logical conclusion of your position is that, unless a lawyer bases an educational marketing activity (which would include such things as seminars for the public and CLEs for colleagues) entirely on work that the lawyer personally performed from scratch, the lawyer is being deceptive, and therefore unethical. That’s a pretty extreme position.
I agree with you that, from a marketing and personal branding perspective, transparency is important. I was addressing the ethics — not the wisdom — of using a ghostwriter.

John Beaty

Well, I am not a lawyer. But I am a client (as well as a son, grandson and nephew of lawyers.)
When my lawyer brings me a product, either in process or a final, I assume that he had help/input from his staff and possibly other lawyers from his firm, or even consultations with friends. This is not a problem, as my desire is to have the best possible product that he can provide me. However, if I were to ask him a question about something in the product, and his answer made it clear that he had not closely supervised the writing of the document, I would be very unhappy. I assume that this is the case for most clients, and I believe that this is what you are talking about when you say, “oversee and direct”. However, when he writes me a letter about the work we’re doing, I assume it’s from him, not from his partners, nor from his secretary, unless it’s marked as such. He does send me summaries of conversations he has had, and they are usually from his secretary or an intern, and are clearly marked. To me (and, from brief conversations with a couple of members of my family), blogs are more like letters than like products: personal takes and discussions about points of law.
Lisa’s conclusion doesn’t strike me as either logical nor necessary: what is being discussed is the notion that what you put your name on is yours OR it gets noted as such. Certainly, if I came to understand that the things my lawyer were sending me were not even a product of his firm, I would question why I should not go and hire them instead. equally, if the content of his blog came from some other source, I would not feel comfortable unless he noted it as such.

John Beaty

Well, I am not a lawyer. But I am a client (as well as a son, grandson and nephew of lawyers.)
When my lawyer brings me a product, either in process or a final, I assume that he had help/input from his staff and possibly other lawyers from his firm, or even consultations with friends. This is not a problem, as my desire is to have the best possible product that he can provide me. However, if I were to ask him a question about something in the product, and his answer made it clear that he had not closely supervised the writing of the document, I would be very unhappy. I assume that this is the case for most clients, and I believe that this is what you are talking about when you say, “oversee and direct”. However, when he writes me a letter about the work we’re doing, I assume it’s from him, not from his partners, nor from his secretary, unless it’s marked as such. He does send me summaries of conversations he has had, and they are usually from his secretary or an intern, and are clearly marked. To me (and, from brief conversations with a couple of members of my family), blogs are more like letters than like products: personal takes and discussions about points of law.
Lisa’s conclusion doesn’t strike me as either logical nor necessary: what is being discussed is the notion that what you put your name on is yours OR it gets noted as such. Certainly, if I came to understand that the things my lawyer were sending me were not even a product of his firm, I would question why I should not go and hire them instead. equally, if the content of his blog came from some other source, I would not feel comfortable unless he noted it as such.